Common Misconceptions About Family Law Matters

It is not unusual for people to have misconceptions about the family law system in Australia. For instance, some people mistakenly believe that it is necessary to establish fault in order to obtain a divorce in this country. Another commonly held belief is that divorce involves financial settlements and parenting arrangements, when they are almost entirely separate legal proceedings. It is crucial to clarify these misunderstandings to better navigate the family law system. This article corrects 10 common misconceptions about family law matters in Australia.

• I cannot divorce in Australia because I was married overseas

Australian courts can grant a divorce even when the marriage was carried out overseas. The requirement is for one of the spouses to have a connection to Australia and for the marriage to be recognised in this country.

If one spouse is an Australian citizen, has citizenship or has lived in the country for more than 12 months and intends to continue living here, this is sufficient to establish the connection. The great majority of marriages conducted overseas are legally recognised in this country. However, there are some notable exceptions, (such as bigamous, incestuous and child marriages) that are not legally recognised in Australia and therefore cannot be dissolved by an Australian Court.

• Someone must be at fault in divorce

The Family Law Act 1975 introduced the concept of the ‘no fault’ divorce to the Australian legal system. While it is common for a party to an acrimonious divorce to want to apportion blame, there is no need to establish grounds for divorce beyond the fact that the marriage has irretrievably broken down.

• Infidelity affects property settlements

A related misconception is that a spouse’s infidelity affects property settlements. For the most part, infidelity has no impact on property settlements. When deciding property settlements, the Federal Circuit and Family Court of Australia (and the Family Court of Western Australia) focuses on each party’s contributions to the marriage and their future needs, rather than the cause of the marriage breakdown.

• Divorce Finalises Parenting and Property Matters

In Australia, divorce is a separate process to any negotiation about property or parenting. Divorce is simply the legal dissolution of the marriage. Parents can apply to the court for parenting orders at any time, whether before or after a divorce and regardless of whether the parents were ever married or never intend to divorce.

There is a stronger connection between divorce and property settlements. Although they are still completely separate legal processes, parties must ensure that they file for property settlement within 12 months of the divorce being finalised. The court may grant special permission for an application out of time.

• The mother always gets custody of the kids

There are two misconceptions in this phrase. Firstly, there is no concept of child ‘custody’ in Australia, only the concept of ‘parental responsibility’. Secondly, there is no legal presumption that a child will live with their mother (and there is no longer any presumption that a child will spend time with both parents). Rather, when making a parenting order, the court focuses closely on what is in the child’s best interests. This may mean that the court orders that the parents have equal shared parental responsibility, or that the mother or father has sole parental responsibility.

• Marital assets are always equally shared

A common assumption is that a divorcing couple will divide their assets down the middle in an equal split. The family law system in Australia does promote a fair division of assets, but this does not always mean an equal split. Rather, the division of martial assets is determined according to an analysis of the parties’ existing assets and liabilities, financial and non-financial contributions to the marriage, and the ongoing needs of both partners. The ultimate aim is for there to be a fair and equitable distribution of assets, which may well require an unequal split.

• Both spouses must agree to divorce

In Australia, it is not necessary for both spouses to consent to a divorce. While some spouses are on the same page about the divorce and submit their paperwork jointly, this is not a legal requirement. Even if one spouse is strongly opposed to the idea of divorce, the other spouse can individually apply for a divorce, serve papers on their spouse and receive a decree from the Court.

• You need to wait 12 months to split property

In order to apply for a divorce in Australia, a couple must live separately for a period of 12 months. This allows the couple to receive formal recognition of the end of the marriage. However, that does not mean that the couple has to wait a year to negotiate financial settlements. In fact, it is often important to work out these issues earlier, especially because there is an associated deadline to litigate financial matters, and because unresolved financial arrangements can lead to financial risk.

• You cannot be separated and still live together

The requirement for 12 months’ separation for a divorce does not mean that the couple must reside in different residences for this entire period. The law recognises that there may be practical and financial reasons why a couple might continue to live together and makes an exception for living ‘separately under one roof’. The parties will need to establish proof of the separation, such as their separate sleeping arrangements, the payment of household bills, and the lack of shared lifestyle.

1.  Property and parenting matters must be finalised before divorce

A divorce will not be delayed because there is unresolved parenting or property matters between the former couple. The divorce can be completed regardless of the status of any other matters between the parties.

Go To Court Lawyers can demystify the family law process for you and clear up any misconceptions you may have about divorce in Australia. For any legal assistance, get in touch with our experienced and helpful staff on 1300 636 846.